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Federal border prosecutions rise as Biden admin officials consider ending Title 42

U.S. Customs and Border Protection officials in Arizona are referring more migrants to prosecutors this year, marking a significant change since the beginning of the COVID-19 pandemic in March 2020.

Data compiled by the Transactional Records Access Clearinghouse, a non-partisan project based at Syracuse University, found CBP officials sent 2,015 people to federal prosecutors in April alone, an increase of 31 percent from a year earlier when the agency did so with just 1,500 cases. Most of the people sent to federal prosecutors were charged with criminal reentry, a charge pressed against people who have previously been deported, according to TRAC.

The new data may illuminate the future of immigration charges in federal court as the Biden administration moves to dismantle Title 42 — a Trump administration policy once supported by the CDC that allows federal officials to rapidly expel people from the U.S. if they have traveled through a country with coronavirus cases — while promising to again "impose consequences" as the number of people crossing the U.S.-Mexico border has surpassed historic numbers.

In Arizona, prosecutions have risen month over month since the beginning of the year, climbing from 328 prosecutions in January to 636 in April. Moreover, while the number of referrals in 2020 averaged about 461 cases per month, dropping to 324 per month in 2020, the average number of prosecutions is 566 in Arizona's courts.

This remains a drop in the bucket compared to overall encounters by CBP officials along the U.S.-Mexico border, and comes even as CBP continues to rely on Title 42.  When the Trump administration invoked the order, CBP officials argued the change was necessary to mitigate the spread of COVID-19 in border facilities, arguing the policy meant people would not be held in "congregate areas for processing, and instead will immediately be expelled to their country of last transit."

Case-by-case data compiled by TRAC under the Freedom of Information Act showed in February 2020, the number of criminal referrals by CBP had risen to nearly 10,000 cases, but under the Trump administration that dropped to a few hundred cases by April 2020. Meanwhile, federal courts shuttered their operations, restricting the number of people who could be in a courtroom and limiting the number of cases that would pass through the courts.

As part of these closures, the U.S. District Court in Tucson also halted Operation Streamline. Developed as one of handful of "consequence delivery systems" developed by the federal government in 2005, Operation Streamline attempted to deter illegal immigration by prosecuting migrants with two civil crimes, illegal entry and illegal re-entry, as felonies and sending immigrants to prisons. 

While Streamline remained shuttered, data compiled by TRAC shows prosecutions for criminal history—which were historically much more common—have not recovered, TRAC said. "Similarly, criminal referrals from Immigration and Customs Enforcement, have shown no real change," TRAC analysts wrote.

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Historical data shows that since 2008, Border Patrol agents in the Tucson Sector—which covers most of Arizona from the Yuma County line to the Arizona-New Mexico border—have arrested more than 1.5 million people. And, in nearly 630,000 cases, Tucson Sector agents relied on "voluntary return" to send migrants back to Mexico. Another 480,000 were removed under "Expedited Removal" and 322,000 were sent back after agents reused a previous removal order. 

Around 136,000 people were able to fight their deportation by seeking asylum, or some other order of protection, according to TRAC data.

As vaccinations became widely available and the Biden administration reopened the border, the administration also moved terminate Title 42, but that effort sparked a legal battle as Republican governors moved to keep the order in place. While there are clear signs Title 42 has failed—driving people to attempt to cross multiple times and increasing human smuggling efforts—leaders like Ariz. Gov. Doug Ducey argued removing the public health order would "pour gasoline on the fire."

"Title 42 is one of the last measures still in place that helps our border agents do their jobs — and it’s only still in effect because of the advocacy of border governors like Governor Abbott and myself. President Biden is now trying to repeal it to make a political statement," Ducey said. 

In fact, data from CBP shows in April 2022, while border officials encountered people around 201,800 times, that represents about 157,555 unique people. As CBP Commissioner Chris Magnus put it, "Title 42 has contributed to a higher-than-usual number of migrants making multiple border crossing attempts."

Of those, around 137,000 people were processed under Title 8—which includes both prosecutions and people allowed into the country to seek asylum—including about 7,100 people who came as families, including parents with children. However, the agency encountered 54,773 people who arrived as families, meaning that a large portion of families were expelled under Title 42.

Meanwhile, CBP encountered 12,200 children traveling as "unaccompanied minors," who arrived at the U.S.-Mexico border without parents or guardians, according to agency data.

In April, Magnus said his agency would continue to enforce Title 42, but he highlighted that once the public order is terminated, CBP will "once again impose consequences for all unlawful entries by fully exercising its Title 8 authorities, as it used to long before the COVID-19 pandemic."

"The fact is that our borders are not open, and we will continue to remove those who enter our country unlawfully and have no legal basis to stay," Magnus said. "While we will likely see an increase in encounters after the CDC’s Title 42 public health Order ends, I have a great degree of confidence that the dedicated men and women of CBP and our multiple agency partners will meet this challenge," Magnus said.

He added his agency was "surging" personnel and resources to the border, "increasing processing capacity, securing more ground and air transportation, and increasing medical supplies, food, water, and other resources to ensure a humane environment for those being processed, screened, and vetted."

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Paul Ingram/TucsonSentinel.com

A young girl sits on her dad's shoulders during a protest against Title 42 in Nogales, Sonora, in March 2022.